May 2009

May 27, 2009

In the first 100 days since Congress passed the Recovery Act, the Justice Department has shoveled out about $1.1 billion in funds to law enforcement agencies around the country, including nearly $70 million in Maryland, Virginia, and the District of Columbia, Associate Attorney General Thomas Perrelli said today.

The Recovery Act includes about $4 billion for state, local and tribal law enforcement. They funds are flowing from the department’s Office of Justice Programs, Office of Community Oriented Policing Services, and the Office on Violence Against Women.

“The Office of Justice Programs team is doing great work, as we have put extraordinary demands on them to get the money out as quickly as possible without compromising one bit on making sure that taxpayer dollars are being well spent,” Perrelli said, speaking at a law enforcement symposium on violence against women.

The grants are propping up a range of criminal justice activities and support services, including drug and gang task forces, courts and corrections activities, prevention and victim services, training and technical services, and new crime-fighting technologies, Perrelli said.

The Office on Violence Against Woman has received $225 million to support five of its grant programs, and Perrelli estimated that $1 billion of funding earmarked for the department’s Community Oriented Policing Services Office would create or sustain about 5,500 law enforcement jobs. The COPS Office has received applications from more than 7,000 law enforcement agencies for $8.3 billion in Recovery Act funds. Most of those requests will not be funded, though President Barack Obama has pledged to put 50,000 police officers on the street in coming years.

D.C. Attorney General Peter Nickles is not willing to change his mind about changing up the flexible work schedules lawyers for the city enjoyed for years.

Nickles, responding to a union grievance, said his decision to amend the Alternative Work Schedule policy did not violate the collective bargaining agreement or city law. Click here for a copy of Nickles' response.

Last month, Nickles amended a longstanding policy that allowed District lawyers to work extra hours in exchange for a shorter work week. City lawyers used to take off Mondays and Fridays but now days off must be scheduled between Tuesdays and Thurdays. No more than 20 percent of the workforce—about 1 in 5 lawyers—can be off at any one time.

Nickles told the union that the policy change is supposed to cut costs and to foster “speedy access” to District lawyers. “I exercised an exclusive management right to direct the tour of duty for OAG employees, which management has not waived,” Nickles said in a letter to the union president, Steven Anderson, this month.

Anderson said in a letter to Nickles last month that management did not inform attorneys of performance issues. “In fact, we understand that managers have mentioned to line attorneys that workforce morale and productivity have increased as a result of the existing policy,” Anderson wrote to Nickles.

About 75 percent of the 180 attorneys at the OAG participate in the program, Anderson said. He said the flexible work schedule policy has been a recruitment tool.

The lawyers' union made an agreement with management to give up its 2010 cost of living increase—4 percent under the contract. The union, Anderson said, also gave up the right to bonuses and to be paid for work on holidays and weekends. Nickles noted the concessions in his letter to the union.

“I appreciate the union’s recent concessions to avoid a reduction in force and look forward to your further assistance as OAG maintains efficiencies while performing additional work during very difficult financial times,” Nickles said in the letter.

Meet Judge Sonia Sotomayor: "She was 'a child with dreams,' as she once said, the little girl who learned at 8 that she had diabetes, who lost her father when she was 9, who devoured Nancy Drew books and spent Saturday nights playing bingo, marking the cards with chickpeas, in the squat red brick housing projects of the East Bronx." So begins this fascinating NYT profile of the first Hispanic Supreme Court nominee. Click here for The National Law Journal's coverage by Tony Mauro and Marcia Coyle.

Overruled: In a 5-4 decision, the Supreme Court yesterday overruled a 23-year-old precedent on the right to counsel, Coyle reports. The majority in Montejo v. Louisiana dispensed with Michigan v. Jackson, the 1986 decision that bars police from initiating interrogation of a criminal defendant once he or she has asked for a lawyer at an arraignment or a similar proceeding. Justice Antonin Scalia, who read the opinion to an unusually thin crowd, said Jackson was "poorly reasoned, has created no significant reliance interests and is ultimately unworkable."

Storm Warnings: In other SCOTUS news, the NLJ's Mike Scarcella reports that yesterday the Court agreed to hear Merck & Co.'s challenge to a shareholder suit linked to litigation over the painkiller Vioxx. Company lawyers say the shareholder suit was filed outside the two-year statute of limitations and should not be permitted to go forward. At issue in the case are so-called "storm warnings" -- the point at which the investor has received notice of the alleged wrongdoing and the two-year window on bringing a suit begins. The U.S. Court of Appeals for the 3rd Circuit noted there is disagreement among circuit courts about starting points.

Health Care Hangups: More from today's New York Times: Antitrust lawyers say doctors, hospitals, insurance companies, and drug makers could run into legal trouble if they agree to hold down prices and reduce the growth of health spending. That's bad news for President Barack Obama, who wants to cut health costs by $2 trillion over the next decade. The Justice Department and the Supreme Court have made clear that agreements setting maximum prices are just as illegal as agreements that set minimum ones, and while Obama is asking the health care industry for proposals to control costs, his administration has offered no relief from antitrust laws. In fact, he's vowed to step up enforcement.

Bernie's Bank: Banco Santander SA, one of the largest conduits of investor money to Bernard Madoff, agreed on Tuesday to pay $235 million to settle potential legal claims by the trustee of the defunct Madoff firm, The Wall Street Journalreports.
If approved by the bankruptcy court overseeing the Madoff firm's liquidation, the bank's agreement would would mark the first time a so-called feeder fund has agreed to make payments to the trustee. It also would raise to $1.2 billion the amount of assets the trustee has recovered for Madoff investors.

May 26, 2009

In selecting Judge Sonia Sotomayor as his Supreme Court nominee, President Barack Obama said he was looking for someone with a "common touch," a person who had experienced and overcome adversity and can understand the real-world consequences of decisions. That led her to Sotomayor, who will bring a wide range of experiences to the court if she is confirmed. Though her resume is unique, she actually has more in common with other justices than you might imagine. For a fuller story on today's historic events, check here at the National Law Journal site.

The American Bar Association’s qualification review of Circuit Judge Sonia Sotomayor is underway, the ABA announced this afternoon.

Lawyers, judges and community members who know Sotomayor will be interviewed as part of the evaluation by the ABA Standing Committee on the Federal Judiciary. The interviews will explore Sotomayor’s integrity, professional competence and judicial temperament.

Two panels of professors will read Sotomayor’s legal writings for quality, clarity, knowledge of the law and analytical ability. A separate panel made up of Supreme Court and appellate court practitioners will also examine Sotomayor’s writings. The ABA says Sotomayor will be interviewed.

The ABA’s findings will become part of a report presented to the 15 members of the standing committee, who are asked to evaluate the nominee as “well qualified,” “qualified” or “not qualified.” The committee, chaired by K&L Gates partner Kim Askew in Dallas, will then present a report to the Senate Judiciary Committee.

Carolyn Williams, of counsel at Williams & Connolly, and Joseph Potenza of Banner & Witcoff, are members of the standing committee. Williams and Potenza were not immediately reached for comment this afternoon.

To read the ABA’s record on the last Supreme Court appointment, Justice Samuel Alito Jr., click here.

Cable companies may not reach exclusive service contracts with owners of apartment buildings, the U.S. Court of Appeals for the D.C. Circuit held today, upholding a 2007 ruling from the Federal Communications Commission. The court also ruled that current exclusive contracts are not enforceable.

The FCC banned exclusive contracts because of their anti-competitive effect on the cable market. Apartment buildings often entered into such contracts in exchange for the cable company wiring a building.

The petitioners, the NCTA and two real estate groups, challenged what Judge David Tatel, writing for a three-judge panel, called a “regulatory turnabout.”

“We think it’s unfortunate that the court read FCC authority so broadly, clearly beyond what we think Congress intended to give the agency in regulating practices considered to be anti-competitive,” Smith said.

Tatel wrote that while the text and history of the statute at issue supports “the proposition that Congress was, in fact, principally concerned with program hoarding, none suggests that Congress chose its language to limit the Commission from regulating that evil alone.”

Wiley Rein partner Andrew McBride represented, among others, AT&T and Verizon as intervenors in support of the FCC. McBride, who co-chairs the firm's appellate practice, said the ruling is a victory for competition.

Matthew Ames of Miller & Van Eaton argued for the National Multi Housing Council and the National Apartment Association. Joel Marcus argued for the FCC.

For the third straight year, Women in Federal Law Enforcement will award one of its highest honors to a lawyer in the Justice Department’s Civil Rights Division. The group has tapped special litigation counsel Kristy Parker, a senior attorney in the division’s Criminal Section, to receive the 2009 Top Prosecutor Award for successfully prosecuting three Kentucky jailers who placed an 18-year-old man arrested for a traffic violation in a jail cell with inmates who assaulted and raped him, the Justice Department announced today.

The jury convicted two corrections officers, Shawn Freeman and Wesley Lanham, of conspiracy, aiding and abetting a civil rights violation, and falsifying records. A third corrections officer, Clinton Shawn Sydnor, pleaded guilty to charges of conspiracy and deprivation of rights. All were given lengthy prison sentences.

The victim was arrested on Valentine’s Day in 2003 and taken to the Grant County, Ky., Detention Center, where he was led down a row of cells as inmates yelled, “He’s such a cutie!”; “Bring him to me!”; and “Happy Valentine’s Day!” The jailers told the victim that he would make someone a “good girlfriend” and announced to the other inmates that they needed to "teach him a lesson," according to court records. They deposited him in an isolated part of the jail, where he was left alone for hours. Click here for a copy of the indictment.

Parker has served in the Justice Department for a decade and has been a trial attorney in the Criminal Section for six years. She will be presented the award during a June 17 ceremony in Tucson, Ariz.

“Kristy Parker represents the tenacious spirit and extraordinary commitment of the many fine career attorneys who serve the public interest at the Justice Department. Her tireless and extraordinary litigative ability vindicated the civil rights of the victim,” Acting Assistant Attorney General Loretta King said in the statement.

Last year, deputy chief Paige Fitzgerald of the Civil Rights Division received the award for successfully prosecuting former Ku Klux Klansman James Ford Seale for the racially motivated killings of two black men in Mississippi more than 40 years earlier. The group named deputy chief Bobbi Bernstein top prosecutor in 2007 for being the first to use federal criminal civil rights statutes to prosecute members of a traditional street gang.

Business groups, advocates for and against abortion rights, and a variety of other interests are offering their thoughts today on the choice of Judge Sonia Sotomayor for the Supreme Court.

Some of the groups are expressing a strong position for or against Sotomayor. Others are withholding judgment, saying that they can't find much in her record that relates directly to the issues they care about. Sotomayor has been on the U.S. Court of Appeals for the 2nd Circuit since 1998 and previously was a trial judge in the Southern District of New York.

(Click here for earlier statements from liberal groups and here for those from conservative groups. Click here for statements from Hispanic and civil rights organizations.)

Here's a sample of the latest reactions from interest groups, in the order we received them.

The Supreme Court today agreed to hear Merck & Co.’s challenge to a shareholder suit linked to litigation over the painkiller Vioxx. Company lawyers say the shareholder suit was filed outside the two-year statute of limitations and should not be permitted to go forward.

Last year, the U.S. Court of Appeals for the 3rd Circuit reversed a trial judge’s dismissal of the suit. U.S. District Judge Stanley Chesler of New Jersey had ruled that the investors had ample notice of alleged fraud involving Vioxx—through, among other things, scientific and press reports—and could have pursued a claim within a two-year window. The appeals court ruled 2-1 against Merck, driving lawyers for the drug maker to petition the Supreme Court for certiorari.

At issue in the case are so-called “storm warnings”—the point at which the investor has received notice of the alleged wrongdoing and the two-year window on bringing a suit begins. The 3rd Circuit panel noted there is disagreement among circuit courts about starting points.

Evan Chesler, presiding partner at Cravath, Swaine & Moore in New York, who argued for Merck in the district and appellate courts, said “the outcome should not depend on the circuit in which the case is litigated.” Chesler said there was sufficient public notice prior to 2001 and that the shareholder suit should be time-barred.

In September 2004, Merck announced the company was pulling Vioxx, an anti-inflammatory drug used in the treatment of arthritis, from the market due to concerns about a link between long-term use of the drug and an increased risk of heart attack and stroke. The first shareholder class action was filed in November 2003.

John Coffey, a partner at Bernstein, Litowitz, Berger & Grossman in New York, who argued for the shareholders, was not immediately reached for comment.